And Now a Word With … Special Counsel Hampton Dellinger

In previous roles with the Justice Department, as a deputy attorney general in the North Carolina Department of Justice, and as chief legal counsel in the Office of the North Carolina Governor, Hampton Dellinger (pictured below) tackled plenty of issues, ranging from human trafficking to the reliability of forensic science.

As the new head of the U.S. Office of Special Counsel (OSC), Dellinger is now immersed in a new issue — one that “understands and appreciates the role of whistleblowers.”

“Everyone who blows the whistle on government misconduct does so with great courage and, regrettably, too often find themselves at professional risk,” the Special Counsel said. “But our gratitude is not enough. Federal government whistleblowers deserve and are legally entitled to robust protection from retaliation.”

And they seem to be getting it — at least more so recently. Whistleblower reprisal complaints have fallen by more than 40 percent in the last five-year period measured (FY 2017-2022), according to Public Employees for Environmental Responsibility. Meanwhile, laws, such as the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, have strengthened whistleblower protections, one of two reasons Dellinger is hopeful the trend continues. “First, Congress enacted mandatory discipline provisions for supervisors that are found to have retaliated,” Dellinger said. “Second is the return of a quorum at the Merit Systems Protection Board. Between OSC and MSPB, whistleblowers can and will be protected.”

That’s not hyperbole. During the first year after a return to quorum, MSPB issued 58 precedential decisions. Forty-one percent of those involved allegations of whistleblower reprisal.

This month, OSC was once again named among the best Federal government agencies to work for – fourth best, to be exact, among small agencies, according to the most recent Federal Employee Viewpoint Survey.

Dellinger, who was sworn in as Special Counsel on March 6, took some time recently to answer our questions.

DG: Congratulations on the appointment. What’s been the biggest surprise for you so far about working at OSC?

HD: I would say my biggest surprise has been the ability of OSC’s staff to do so much with limited resources. Last year, OSC received more than 4,600 new cases. With such a caseload, I’ve been impressed with how OSC has thus far been able to keep up and continue to obtain so many favorable results for complainants.

DG: What’s the most common misconception employees and employers have about whistleblowing?

DH: It is wrong for any manager or employer to view whistleblowing in a negative light because they don’t want the agency to look bad. A key aspect of fulfilling any agency’s mission is maintaining a culture where wrongdoing can be raised by anyone with a reasonable expectation that it will be addressed. And without fear of retaliation. With a vast Federal civil service spread out across the country, whistleblowers play an integral role in ensuring problems get fixed.

[Editor’s note: A recording of FELTG’s The Why, When an How to Avoid Whistleblower Reprisal is available in our store.]

DG: Tell us your concern about gag orders and your advice to agencies currently using nondisclosure agreements.

HD: Congress has specifically enshrined into law protections that every employee must receive, and it’s very clear cut what is required. We don’t think agencies should ever run afoul of a straightforward requirement. If they do issue a nondisclosure agreement or any policy intended to limit employee speech without a specific, mandatory disclaimer outlining whistleblower rights, OSC will ensure that the agency modifies the policy and alerts employees to their rights.

DG: You support a National Whistleblower Day. What would that accomplish?

HD: Not every Federal employee understands whistleblowing rights or the importance of whistleblowers. The main goal of creating a Whistleblower Appreciation Day is education, but also validation for those who have stepped forward in the past knowing they’re not alone and that they’re appreciated.

DG: There is still a lot of confusion both in and out of the Federal workplace about the OSC. How would you briefly describe what the OSC does and why the agency is important?

DH: OSC’s mission is to maintain the integrity and fairness of the Federal workplace and to make the government more accountable. Each year, there are several thousand complaints made to OSC about governmental conduct that is not appropriate.

OSC also enforces the Hatch Act, which puts certain restrictions on partisan political activity by government employees. And we protect the civilian employment and reemployment rights of military service members under the Uniformed Services Employment & Reemployment Rights Act.

DG: Ah, the Hatch Act. As expected during an election season, complaints are up. What trends are you seeing regarding Hatch Act complaints? And what would be your advice to Federal managers who want to avoid Hatch Act violations among their staff?

HD: Common violations trending right now involve social media, either on-duty political activity or solicitation.

My strong advice would be for Federal managers to avail themselves of our educational resources and training materials available on OSC.gov.

OSC’s Hatch Act Unit has a robust advisory function and strives to be responsive to timely questions from the Federal community about the Hatch Act. Government employees can write, call, or email our staff to seek and receive timely Hatch Act advice at any time. Our career Hatch Act Unit professionals also provide robust training, which can be requested. In fact, between Quarter 1 and Quarter 2 of this fiscal year, our Hatch Act Unit has doubled its outreach presentations.

Gephart@FELTG.com